Application Number 35071/97
European Court of Human Rights
The applicants were involved, in one way or another, with a daily newspaper which published pieces to reflect the Turkish Kurdish opinion. The applicants submitted that the newspaper underwent a campaign of terror which eventually led to its closure. The Court found that Turkey did not protect the newspaper’s freedom of expression and found a violation of Article 10.
Theme(s): Violence, terrorism
Date: 16 March 2000
Description of applicant(s): Editor-in-chief, assistant editor-in-chief of the newspaper Özgür Gündem of which the third and fourth applicants were the owners. The Commission later decided not to pursue the examination of the application in so far as it concerned the first applicant, since she had died in 1997. (The Commission referred the case to the Court)
Brief description of facts: Özgür Gündem was a daily newspaper published in İstanbul since 1992. It was, according to the applicants, a Turkish language newspaper seeking to reflect the Turkish Kurdish opinion. The applicants submitted that, until closure of the newspaper in April 1994, there was a campaign against the newspaper which involved killings, disappearances, injuries and ill-treatment of journalists and distributors, threats and the use of violence and actual prosecutions, seizures and confiscation of editions of the newspaper and the imposition of heavy fines. The applicants submitted that these attacks were instigated, condoned and encouraged by State authorities, which failed to provide protection or take effective steps to investigate the incidents. The Turkish Government submitted that Özgür Gündem acted as a propaganda tool for the Kurdistan Workers’ Party (PKK). It maintained that certain editions of the newspaper were legitimately restricted in order to prevent direct incitement to violence. Regarding the criminal incidents, the government held that these were the consequence of terrorist acts by unknown perpetrators. All necessary and appropriate steps were taken by the authorities in respect of any reported unlawful acts.
The applicants complained under Article 10 of the European Convention on Human Rights that there had been a deliberate and unjustified interference with their freedom of expression due to measures and incidents relating to Özgur Gündem and to people connected with the newspaper. They further complained under Article 14 that they had been subject to discrimination in the enjoyment of their freedom of expression.
(Alleged) target(s) of speech: The applicants
The Court’s assessment of the impugned speech: The Court found that Turkey failed to take adequate measures to protect the newspaper to exercise its freedom of expression and that measures such as search and arrest operations were disproportionate and unjustified. As a result of these factors, the newspaper stopped publication. In this light, the Court found a violation of Article 10.
Important paragraph(s) from the judgment:
Para. 58: As these cases also concern measures against newspaper publications, they must equally be seen in the light of the essential role played by the press for ensuring the proper functioning of democracy.
Para.70: The Court is not convinced that, even against the background of serious disturbances in the region, expressions which appear to support the idea of a separate Kurdish entity must be regarded as inevitably exacerbating the situation. While several of the articles were highly critical of the authorities and attributed unlawful conduct to the security forces, sometimes in colourful and derogatory terms, the Court nonetheless finds that they cannot be reasonably regarded as advocating or inciting the use of violence. Having regard to the severity of the penalties, it concludes that the restrictions imposed on the newspaper’s freedom of expression disclosed in these cases were disproportionate to the aim pursued and cannot be justified as “necessary in a democratic society.”
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? No